LETTING OFF a man accused by his partner of rape by misleading her to believe that they were in a marital relation, the Supreme Court on Friday said that it “has not been entrusted to pass moral judgement on the varying exercises of free choice, autonomy and agency by individuals in the country”.A bench of Justices B V Nagarathna and R Mahadevan said, “Adult, men and women may freely make decisions that are wise or unwise, prudent or reckless and considerate or callous. These decisions would necessarily be accompanied by consequences, perhaps in the form of undesirable outcomes or unexpected possibilities, some even deeply hurtful. None of this would, however, transform these decisions and their resulting circumstances automatically into criminal offences requiring the intervention of the State apparatus.”Writing for the bench, Justice Nagarathna said, “Criminal law cannot be used as munitions to settle personal scores, exact revenge or coerce an individual to act in any particular way.”The man, who was married and had two children, lived with the woman, a divorcee, from 1996 to 2003, allegedly after a marriage at a temple in Mysore. The woman alleged that he deceived her by claiming to be a bachelor due to which she consented to a physical relationship. Subsequently, an FIR was registered against him on charges of rape and cheating among others.Although the man approached the Kerala High Court, he failed to get relief, following which he moved the Supreme Court.On Friday, the apex court said it could not find “ingredients” of the charges against the man. “We do not understand as to how the allegations against the appellant herein could be brought within the scope and ambit of the aforesaid provisions. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offences under Sections 376, 420, 493, 494 and 495 of the IPC are entirely absent. The instant case is one wherein the probability of the commission of the said offences by the appellant is entirely non-existent,” it said.It noted that the woman “does not also deny the fact that she was made aware of the pre-existing marriage of the appellant within a few months of cohabiting with him from his brother”.Story continues below this ad“Considering this, it is untenable and incredulous that she continued to believe herself to be appellant’s legal wife solely on the basis of his alleged oral reassurances to the contrary. The case at hand is evidently one of consensual relationship that perhaps was camouflaged in a marriage for the sake of avoiding scrutiny or stigma, which eventually came to an end.”“The mere factum of the relationship having turned sour and acrimonious cannot on its own convert earlier incidences of consent to sexual acts into offences of rape. Such a conclusion would be putting the cart before the horse, predicating the prior act of consent on the outcome of the relationship itself into an offence,” the court said.The bench pointed to “a worrying trend in recent years wherein consensual relationships that have come to an end are retrospectively combed with a fine tooth so as to identify what can post-facto be construed as violence and sexual assault”. It said that treating such relations as non-consensual “denudes the man of any agency entirely, as the mere factum of being in a consensual relationship at one point would bind him to it entirely for fear of being accused of rape at a subsequent point of time.”“In such cases, physical intimacy that occurred during the currency of a functioning relationship cannot be retrospectively branded as acts of rape merely because the relationship soured and no longer subsists.”Story continues below this ad“Rape, being a heinous offence, must be reserved for situations where there is real sexual violence, coercion, or manipulation of consent. When every consensual relationship which sours is converted into an accusation of rape, it not only dilutes the gravity of the offence alleged or rather negates the very allegation of crime. It also subjects the accused to irreparable stigma, harassment and injustice,” the bench said. “This is not merely a matter of personal dispute. The abuse of the criminal justice process in such cases is a matter of serious concern and must be condemned. Hence, courts would have to view the entire relationship holistically rather than from the perspective of its end.”